National Audubon Society v. Department of the Navy

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 NATIONAL AUDUBON SOCIETY; NORTH
CAROLINA WILDLIFE FEDERATION;
DEFENDERS OF WILDLIFE;
WASHINGTON COUNTY, NORTH
CAROLINA; BEAUFORT COUNTY, NORTH
CAROLINA,
Plaintiffs-Appellees,
v.
DEPARTMENT OF THE NAVY; GORDON
R. ENGLAND, Secretary of the Navy;
HANSFORD T. JOHNSON, Assistant No. 05-1405 
Secretary of the Navy; R. M.
FLANAGAN, Major General, U.S.
Marine Corps, Commanding
General, Marine Corps Air Station,
Cherry Point,
Defendants-Appellants.
NATURAL RESOURCES DEFENSE
COUNCIL, INCORPORATED,
Amicus Supporting Appellees. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
Terrence W. Boyle, District Judge.
(CA-04-2-BO-2; CA-04-3-BO-2)
Argued: July 20, 2005
Decided: September 7, 2005
Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.

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Affirmed in part; vacated and remanded with instructions in part by
published opinion. Judge Wilkinson wrote the opinion, in which
Judge Williams and Judge Traxler joined.
COUNSEL
ARGUED: Aaron Peter Avila, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellants. Kiran H. Mehta,
KENNEDY, COVINGTON, LOBDELL & HICKMAN, L.L.P.,
Charlotte, North Carolina; Derb Stancil Carter, Jr., SOUTHERN
ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina,
for Appellees. ON BRIEF: Kelly A. Johnson, Acting Assistant Attor-
ney General, Frank D. Whitney, United States Attorney, Jeffrey Bos-
sert Clark, Deputy Assistant Attorney General, R. A. Renfer, Jr.,
Assistant United States Attorney, G. Norman Acker, III, Assistant
United States Attorney, Stephen G. Bartell, UNITED STATES
DEPARTMENT OF JUSTICE, Environment & Natural Resources
Division, Washington, D.C.; Robert J. Smith, NAVY LITIGATION
OFFICE, Washington, D.C., for Appellants. Raymond E. Owens, Jr.,
Christopher C. Lam, KENNEDY, COVINGTON, LOBDELL &
HICKMAN, L.L.P., Charlotte, North Carolina, for Appellees Wash-
ington County, North Carolina, and Beaufort County, North Carolina;
Michelle B. Nowlin, SOUTHERN ENVIRONMENTAL LAW CEN-
TER, Chapel Hill, North Carolina, for Appellees National Audubon
Society, North Carolina Wildlife Federation, and Defenders of Wild-
life. Sharon Buccino, David Newman, NATURAL RESOURCES
DEFENSE COUNCIL, Washington, D.C., for Amicus Curiae, Natu-
ral Resources Defense Council, Supporting Appellees.
OPINION
WILKINSON, Circuit Judge:
In this case we consider whether the Department of the Navy has
complied with the National Environmental Policy Act (NEPA), 42
U.S.C. § 4321 et seq. (2000), in its decision to construct a landing
field for its new Super Hornet aircraft in Washington and Beaufort
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Counties, North Carolina. The landing field would lie within five
miles of the Pocosin Lakes National Wildlife Refuge, the winter
home for nearly 100,000 waterfowl. When a federal entity such as the
Navy undertakes an action that will significantly affect the environ-
ment, NEPA requires it to prepare an Environmental Impact State-
ment (EIS) that takes a "hard look" at the action’s impacts. Robertson
v. Methow Valley Citizens Council, 490 U.S. 332, 356 (1989). The
district court found that NEPA demanded a more thorough EIS than
the one the Navy prepared during the process of selecting the location
for its landing field. The court therefore issued a permanent injunction
preventing the Navy from taking any steps toward planning, develop-
ment, or construction of the landing field until it fulfilled its NEPA
obligations.
We agree with the district court that the Navy’s EIS was deficient
and thus hold that the Navy must complete a Supplemental EIS
(SEIS) to address its shortcomings. We conclude, however, that the
injunction issued by the district court was overly broad. While the
Navy completes the SEIS, it may proceed with certain specific steps
prefatory to possible construction of the landing field. We therefore
affirm the judgment below that the Navy has failed to comply with
NEPA, vacate the injunction, and remand to the district court with
instructions to narrow the injunction in accordance with the specific
directions we set forth.
I.
This case arose from the Navy’s efforts to modernize its fighter air-
craft. It decided to station new F/A-18 E/F ("Super Hornet") aircraft
on the East Coast to replace earlier model F/A-18 C/D ("Hornet") and
F-14 ("Tomcat") airplanes in its Atlantic Fleet. This decision required
that it determine both where to homebase, or station, the aircraft and
where to operate an Outlying Landing Field (OLF) to conduct Field
Carrier Landing Practice (FCLP).
FCLP is a training procedure in which pilots land on a simulated
aircraft carrier deck marked out on the OLF. The pilots land on the
simulated carrier and immediately take off to position the aircraft for
another touchdown. This procedure, known as "touch and go," is
repeated from eight to ten times during each training session. A Land-
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ing Signals Officer judges each landing. FCLP is essential for pilot
safety and proficiency. "Landing a high performance aircraft on a
moving aircraft carrier at sea poses enormous challenges for even [the
Navy’s] most experienced pilots." Joint Appendix (JA) 877 (declara-
tion of Rear Admiral James M. Zortman). On a dark, moonless night,
these challenges are magnified.
The Navy plans to acquire approximately 30,000 acres for the
OLF. It will use 2000 acres for the core area, which will include the
landing field and support facilities. The remaining acreage will pro-
vide a buffer to ensure development compatible with the OLF and to
limit noise impacts on nearby residents. The Navy projects that it will
perform 31,650 FCLP operations annually at the OLF. The OLF will
have twenty-four hour capability, and the Navy will conduct many of
the operations at night.
According to the Navy, a new OLF is necessary because its exist-
ing East Coast OLF, Naval Auxiliary Landing Field (NALF) Fentress,
is inadequate for several reasons. First, nearby residential develop-
ments restrict the Navy’s ability to fully simulate carrier landings
because lights from the residences create nighttime visual cues that
are absent on a dark sea. These developments also impose altitude and
flight pattern restrictions that would not exist in an actual carrier
approach. Pilots utilizing Fentress for FCLP must fly in an irregular,
kidney-bean shaped pattern rather than the oval shaped pattern used
in actual carrier landings. Second, NALF Fentress lacks adequate
capacity for "surge" operations, which require an aircraft carrier to
deploy at unscheduled times. The military operations in Afghanistan
(Enduring Freedom) and Iraq (Iraqi Freedom) are recent examples.
Surge operations necessitate greater FCLP capacity because multiple
carrier squadrons must train simultaneously at the OLF. Third, even
under non-surge conditions, NALF Fentress is overscheduled, result-
ing in pilots and crews working late into the night. Beyond disrupting
the lives of the naval personnel involved, mechanics also have less
time to perform aircraft maintenance for flights leaving the next day.
This puts aircraft out of service and consequently impacts squadron
readiness.
The Navy attempted to follow NEPA’s requirements in its decision
to homebase the squadrons and construct an OLF. In August 2002, it
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made available to the public a Draft Environmental Impact Statement
(DEIS). In the DEIS, the Navy discussed the potential environmental
impacts of selecting different homebasing and OLF sites. It suggested
"Site C," located in Washington and Beaufort Counties, North Caro-
lina, as one of two preferred sites for the OLF. After allowing time
for public comment, in July 2003, the Navy issued a Final Environ-
mental Impact Statement (FEIS). Department of the Navy, Final
Environmental Impact Statement (FEIS) for the Introduction of F/A-
18 E/F (Super Hornet) Aircraft to the East Coast of the United States
(July 2003). In the FEIS, the Navy analyzed eight potential homebas-
ing alternatives and six potential OLF siting alternatives.
The Navy issued a Record of Decision (ROD) in September 2003,
setting forth its conclusions on the placement issues. Record of Deci-
sion for Introduction of F/A-18 E/F (Super Hornet) Aircraft to the
East Coast of the United States, 68 Fed. Reg. 53,353 (Sept. 10, 2003).
The Navy concluded that it should station eight Super Hornet fleet
squadrons and a Fleet Replacement Squadron (FRS)1 at Naval Air
Station (NAS) Oceana in Virginia Beach, Virginia and two fleet
squadrons at Marine Corps Air Station (MCAS) Cherry Point in
Havelock, North Carolina. The Navy referred to this homebasing
decision as "Alternative 6." Based on this decision, the Navy further
concluded that the optimal location for the OLF was at Site C, which
is fifty nautical miles from Cherry Point and seventy-two nautical
miles from Oceana. The Navy chose Site C because it was roughly
in between the two bases.
Site C is approximately five miles west of the Pocosin Lakes
National Wildlife Refuge (NWR). Washington County v. U.S. Dep’t
of the Navy, 357 F. Supp. 2d 861, 865 (E.D.N.C. 2005). The Super
Hornets’ eastern approach and holding pattern are within two-tenths
of a mile of the Pungo Unit of the NWR. FEIS 12-121. The NWR is
a 115,000-acre wetlands area, and the Pungo Unit was initially
granted federal protection in 1963. The Pungo Unit is an environment
that is "highly populated by nature and thinly populated by man," and
1A FRS is a transitory squadron. It provides the final training for
newly-designated pilots in the specific aircraft that they will operate. It
also provides training to experienced pilots who are switching aircraft
models or who were previously in non-flying assignments.
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is "home to some of the most unspoiled habitat along the East Coast."
Washington County, 357 F. Supp. 2d at 865.
The FEIS noted that the Pungo Unit "was established specifically
as an inviolate waterfowl sanctuary." FEIS 11-36. The NWR is
located on the Atlantic Flyway, which is a major route for migratory
waterfowl. The Pungo Unit provides the winter residence for nearly
100,000 of these waterfowl, including tundra swans and snow geese,
which migrate there from arctic regions. These birds leave the NWR
to forage in the agricultural fields surrounding Site C.
Plaintiffs, Washington and Beaufort Counties and several environ-
mental groups, filed separate suits against the Navy, alleging that the
Navy violated NEPA because it did not adequately assess the environ-
mental impacts of its decision to place an OLF at Site C.2 The district
court consolidated the cases. Plaintiffs contend that the Navy’s plan
for an OLF at Site C threatens the waterfowl at the NWR and the eco-
tourism to the counties that the NWR provides. Specifically, they
claim that the Super Hornet aircraft might strike the birds, flush them
(disturb them and cause them to take flight), reduce their feeding and
resting times, alter their behavior, hinder their migration, and decrease
their populations.
The district court subsequently entered a preliminary injunction
prohibiting the Navy from undertaking further work toward an OLF
at Site C, and the Navy appealed. We dismissed the appeal as moot
because the district court decided the case on the merits during the
pendency of the appeal. Both parties had moved for summary judg-
ment, and the court granted plaintiffs’ motion.3 Washington County,
357 F. Supp. 2d at 878.
2The environmental plaintiffs also raised NEPA challenges to certain
proposed Military Operating Areas, which are a type of special-use air-
space designated by the Federal Aviation Administration. However, the
district court severed this claim and it is now a separate case. Washington
County, 357 F. Supp. 2d at 873 n.12.
3Plaintiffs also alleged that the Navy violated the Coastal Zone Man-
agement Act (CZMA). 16 U.S.C. § 1451 et seq. (2000). The district court
granted the Navy’s motion for summary judgment on this claim. Wash-
ington County, 357 F. Supp. 2d at 878. It found that the Navy had com-
plied with the CZMA when it informed the North Carolina Division of
Coastal Management (NCDCM) that its proposal was consistent with
North Carolina’s Coastal Management Plan and the NCDCM agreed. Id.
at 876. Plaintiffs have not appealed that decision.
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The district court held that the Navy’s EIS did not adequately
address the impacts of an OLF at Site C on migratory waterfowl. Id.
at 868. It also stated that the inadequacy of the EIS was "more under-
standable" in light of various documents suggesting that the selection
of Site C was a preordained decision and that the Navy "reverse engi-
neered" the EIS to justify this outcome. Id. at 874. The district court
enjoined the Navy from doing work related to the OLF at Site C until
it complied with its NEPA obligations. Id. at 878. Specifically, it
enjoined the Navy "from taking any further activity associated with
the planning, development, or construction of an OLF in Washington
and Beaufort Counties." Id. The Navy appealed the trial court’s grant
of summary judgment and issuance of a permanent injunction.
The issues before this Court are both whether the Navy complied
with NEPA and, if not, whether the district court’s permanent injunc-
tion was the appropriate remedy.
II.
NEPA sets forth a regulatory scheme for major federal actions that
may significantly affect the natural environment. Mt. Lookout-Mt.
Nebo Prop. Prot. Ass’n v. Fed. Energy Regulatory Comm’n, 143 F.3d
165, 171 (4th Cir. 1998). It is designed "to promote efforts which will
prevent or eliminate damage to the environment and biosphere and
stimulate the health and welfare of man." 42 U.S.C. § 4321. Specifi-
cally, the purpose of NEPA is to sensitize all federal agencies to the
environment in order to foster precious resource preservation. Andrus
v. Sierra Club, 442 U.S. 347, 350-51 (1979); Hodges v. Abraham, 300
F.3d 432, 438 (4th Cir. 2002).
NEPA promotes its purpose in two ways. First, NEPA ensures that
a federal agency will carefully consider the effects of its actions on
the environment by specifying formal procedures the agency must
follow before taking action. Robertson, 490 U.S. at 349. Second,
NEPA requires an agency to disseminate widely its findings on the
environmental impacts of its actions. Thus, it ensures that the public
and government agencies will be able to analyze and comment on the
action’s environmental implications. Id.; see also Hodges, 300 F.3d
at 438 (same).
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NEPA is a procedural statute; it does not force an agency to reach
substantive, environment-friendly outcomes. Rather, NEPA simply
requires that the agency take a "hard look" at environmental impacts
before taking major actions. See, e.g., Dep’t of Transp. v. Pub. Citi-
zen, 541 U.S. 752, 756 (2004) (noting that "NEPA itself does not
mandate particular results") (quotation marks omitted); Strycker’s Bay
Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28 (1980)
(per curiam) (noting that the agency considered the environmental
effects of its decision and that "NEPA requires no more"). In fact, an
agency decision is acceptable even if there will be negative environ-
mental impacts resulting from it, so long as the agency considered
these costs and still decided that other benefits outweighed them. See
Robertson, 490 U.S. at 350. "NEPA merely prohibits uninformed —
rather than unwise — agency action." Id. at 351.
The core provision of NEPA requires that an agency of the federal
government:
include in every recommendation or report on proposals for
legislation and other major Federal actions significantly
affecting the quality of the human environment, a detailed
statement by the responsible official on — (i) the environ-
mental impact of the proposed action, (ii) any adverse envi-
ronmental effects which cannot be avoided should the
proposal be implemented, (iii) alternatives to the proposed
action, (iv) the relationship between local short-term uses of
man’s environment and the maintenance and enhancement
of long-term productivity, and (v) any irreversible and irre-
trievable commitments of resources which would be
involved in the proposed action should it be implemented.
42 U.S.C. § 4332(2)(C). The statement that this section requires is the
EIS. See Pub. Citizen, 541 U.S. at 757; 40 C.F.R. § 1508.11 (2004).
To supplement the statute, the Council on Environmental Quality
(CEQ) has set forth regulations that agencies are required to follow,
Pub. Citizen, 541 U.S. at 757; 40 C.F.R. § 1500.3, and courts give
these regulations "substantial deference," Andrus, 442 U.S. at 358.
The statute and the regulations specify that the EIS should contain the
environmental effects and impacts of the proposed action, 40 C.F.R.
§§ 1502.15-.16, reasonable alternatives to it, id. § 1502.14, possible
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mitigation measures for any negative environmental impacts that will
result from it, id. §§ 1502.14(f), 1508.20, and the cumulative impacts
of it combined with other past, present, or foreseeable future actions,
id. §§ 1502.16, 1508.7-.8.
In drafting the EIS, the agency has to follow certain procedures that
the CEQ has set forth. Most relevant here, the CEQ stipulates that the
agency will draft the EIS in stages. The initial draft is the DEIS. Id.
§ 1502.9(a). Once the DEIS is complete, the agency must circulate it
in order to obtain feedback from other agencies and the public. Id.
§ 1503.1. The agency must then respond to these comments and pub-
lish a FEIS. Id. §§ 1502.9(b), 1503.4. After the FEIS is complete, the
agency may be required to draft a SEIS if there are changed circum-
stances or new information becomes available. Id. § 1502.9(c).
Finally, once the agency has made a decision, it must publish a ROD.
Id. § 1505.2. Only then may an agency finalize its action. See id.
§ 1506.1(a).
III.
The Navy contends that the district court erred in concluding that
the EIS failed to comply with NEPA. We review the district court’s
grant of summary judgment de novo. Hodges, 300 F.3d at 445. There
is no dispute that the Navy is a federal agency for the purposes of
NEPA. Concerned About Trident v. Rumsfeld, 555 F.2d 817, 823
(D.C. Cir. 1977); see also 32 C.F.R. § 775 (2004) (Navy regulations
for implementing NEPA).
A.
A court examining the sufficiency of an agency’s environmental
analysis under NEPA must determine whether the agency has taken
a "hard look" at an action’s environmental impacts. Hughes River
Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir.
1996) (Hughes River I). What constitutes a "hard look" cannot be out-
lined with rule-like precision. At the least, however, it encompasses
a thorough investigation into the environmental impacts of an agen-
cy’s action and a candid acknowledgment of the risks that those
impacts entail. See Robertson, 490 U.S. at 350 (agencies must assure
that "the adverse environmental effects of the proposed action are
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adequately identified and evaluated"); Hughes River Watershed Con-
servancy v. Johnson, 165 F.3d 283, 288 (4th Cir. 1999) (Hughes River
II) (same); 40 C.F.R. § 1502.14(a) (agencies shall "[r]igorously
explore and objectively evaluate all reasonable alternatives") (empha-
sis added).
We may not, of course, use review of an agency’s environmental
analysis as a guise for second-guessing substantive decisions commit-
ted to the discretion of the agency. Robertson, 490 U.S. at 350. How-
ever, this does not turn judicial review into a rubber stamp. "[I]n
conducting our NEPA inquiry, we must ‘make a searching and careful
inquiry into the facts and review whether the decision . . . was based
on consideration of the relevant factors and whether there has been a
clear error of judgment.’" Hodges, 300 F.3d at 445 (quoting City of
Alexandria v. Fed. Highway Admin., 756 F.2d 1014, 1017 (4th Cir.
1985)); see also Marsh v. Or. Natural Res. Council, 490 U.S. 360,
378 (1989) (same).
Two further considerations guide us in assessing whether an
agency has conducted a "hard look." First, given all the possible fac-
tual variations in NEPA cases, an agency’s obligations under NEPA
are case-specific. A "hard look" is necessarily contextual. See
Hodges, 300 F.3d at 445 (describing the court’s role as "a searching
and careful inquiry into the facts" and the agency’s consideration of
"relevant factors") (quotation marks omitted); California v. Block,
690 F.2d 753, 761 (9th Cir. 1982) ("The detail that NEPA requires in
an EIS depends upon the nature and scope of the proposed action.").
Second, as the Navy correctly contends, a court reviewing an EIS
for NEPA compliance must take a holistic view of what the agency
has done to assess environmental impact. Courts may not "flyspeck"
an agency’s environmental analysis, looking for any deficiency, no
matter how minor. See, e.g., Fuel Safe Washington v. FERC, 389 F.3d
1313, 1323 (10th Cir. 2004) (describing the inquiry as "deciding
whether claimed deficiencies in a FEIS are merely flyspecks, or are
significant enough to defeat the goals of informed decision making
and informed public comment") (quotation marks omitted); Half
Moon Bay Fishermans’ Mktg. Ass’n v. Carlucci, 857 F.2d 505, 508
(9th Cir. 1988) ("The reviewing court may not ‘flyspeck’ an EIS.").
Allowing courts to seize upon any trivial inadequacy in an EIS as rea-
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son to reject an agency decision would permit undue intrusion into an
agency’s decisionmaking authority. Thus, when an agency has uti-
lized multiple forms of analysis in compiling an EIS, a deficiency in
a single area is less likely to indicate NEPA non-compliance.
By the same token, however, a totality of the circumstances
approach means that a court must view deficiencies in one portion of
an EIS in light of how they affect the entire analysis. See 40 C.F.R.
§ 1502.1 (requiring that an EIS "shall be supported by evidence that
the agency has made the necessary environmental analyses"). The
Navy does not dispute that defects in different forms of analysis that
would not by themselves indicate NEPA non-compliance may never-
theless do so in combination. An agency may not, for example, paper
over one inadequate mode of analysis by referencing another with
shortcomings of its own. A reviewing court must therefore examine
all of the various components of an agency’s environmental analysis
in order to determine, on the whole, whether the agency has con-
ducted the required "hard look."
B.
The Navy contends that it took a "hard look" at the potential impact
of an OLF on waterfowl by utilizing a wide range of analyses, includ-
ing site investigation, Bird Aircraft Strike Hazard (BASH) evaluation,
scientific literature review, consultation with natural resource agen-
cies, comparative analysis, and cumulative impact analysis. On the
basis of these analyses, the FEIS states that migratory waterfowl
"would not be affected" by an OLF at Site C, FEIS 2-105, and the
ROD concludes that "[w]hile there would be some impacts to migra-
tory waterfowl, these impacts are mitigable and would be minor," 68
Fed. Reg. at 53,354.
We note at the outset that the proximity of the proposed OLF to the
Pocosin Lakes National Wildlife Refuge bears heavily on our inquiry
in this case. We cannot divorce this fact from the sufficiency of the
agency’s environmental analysis. NEPA’s "national policy . . . to pro-
mote efforts which will prevent or eliminate damage to the environ-
ment," 42 U.S.C. § 4321, is surely implicated when the environment
that may be damaged is one that Congress has specially designated
for federal protection. The point of a wildlife refuge is not just to pro-
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tect an area that is beautiful and valuable in its own right, but to
remind us that an environment that is welcoming to wildlife will ulti-
mately be one that is more hospitable to humankind. The implement-
ing statute of the National Wildlife Refuge System states that "[t]he
mission of the System is to administer a national network of lands and
waters for the conservation, management and where appropriate, res-
toration of fish, wildlife and plant resources and their habitats." 16
U.S.C. § 668dd(a)(2) (2000). Congress has expressly found that "[t]he
Pocosin Lakes National Wildlife Refuge . . . provides unique opportu-
nities for observing and interpreting the biological richness of the
region’s estuaries and wetlands." Pub. L. No. 103-232, § 301(1), 108
Stat. 336, 339 (1994). The Navy’s "hard look" in this case must there-
fore take particular care to evaluate how its actions will affect the
unique biological features of this congressionally protected area.
The Navy did not meet this burden. The deficiencies in each area
of the Navy’s analysis would not, on their own, be sufficient to invali-
date the EIS. But a review of the various components of the EIS taken
together indicates that the Navy did not conduct the "hard look" that
NEPA requires. The Navy’s conclusion that impacts on snow geese
and tundra swans would be "minor" is simply difficult to reconcile
with its failure to conduct more detailed analysis on both the relevant
species and the unique properties of the habitat surrounding Site C.
Its determination is further belied by the implications from the data
that it did gather. The hallmarks of a "hard look" are thorough investi-
gation into environmental impacts and forthright acknowledgment of
potential environmental harms. Robertson, 490 U.S. at 350. The
Navy’s effort fell short in both regards.
C.
We shall address the major components of the Navy’s environmen-
tal analysis and why they collectively fail to meet the "hard look"
standard. Subsection (1) discusses the Navy’s visits to Site C and
month-long radar study. Subsection (2) addresses BASH, a particular
environmental harm, and the Navy’s efforts to assess BASH risk
through Bird Avoidance Modeling (BAM), site visits, and the radar
study. Subsection (3) evaluates the Navy’s reliance on scientific liter-
ature, and Subsection (4) examines the Navy’s comparative analysis
of the environmental effects at three existing military facilities.
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Lastly, Subsection (5) canvasses the cumulative impacts of military
airspace in eastern North Carolina, including proposed Military Oper-
ating Areas.
1.
We first address the Navy’s site investigation. Solid investigation
into the location and concentration of waterfowl in the vicinity of the
OLF was a potentially key component for the Navy’s evaluation of
environmental impacts. These included the likelihood of flushing, dis-
ruption of foraging and roosting, and bird-aircraft strike risk. The par-
ties do not dispute that the proximity of the OLF to a National
Wildlife Refuge required the gathering of on-site data to determine
where waterfowl loafed and foraged. Indeed, the Fish and Wildlife
Service specifically commented that long-term data was necessary
because bird populations vary annually and even within a single
migratory season. JA 292.
The FEIS relies on various site visits and a radar study to conclude
that the birds primarily stay within the confines of the NWR, which
is approximately five miles from the proposed OLF. See FEIS 12-139.
This conclusion formed part of the support for the Navy’s determina-
tion that the placement of an OLF at Site C would minimally impact
waterfowl. 68 Fed. Reg. at 53,354.
We find that the site investigation was inadequate. The Navy first
visited the site in the summer of 2001, when the waterfowl had long
since departed for their arctic summer home. This visit was part of the
initial screening of the various proposed OLF sites (the "OLF Siting
Study"), and similar trips were made to other locations. According to
Greg Netti, the Navy contractor assigned primary responsibility for
the EIS sections on biological resources, the Navy team spent only
half a day at Site C.4 This visit, which consisted of driving around the
4The Navy has objected to the district court’s admission of evidence
beyond the administrative record. While review of an agency decision is
usually confined to that record, "there may be circumstances to justify
expanding the record or permitting discovery." Fort Sumter Tours, Inc.
v. Babbitt, 66 F.3d 1324, 1336 (4th Cir. 1995) (quotation marks omitted).
We review a district court’s admission of extra-record evidence for abuse
of discretion. See id. On the facts of this case, we are unable to conclude
that the district court abused its discretion.
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site, was focused mostly on agricultural patterns and residential devel-
opments, including the effects of aircraft noise on nearby churches
and schools. An assessment of bird movement was not possible at this
time because the migratory population was not even present. This pre-
liminary visit was the only visit to the site before the DEIS was pub-
lished in August 2002, classifying Site C as one of two recommended
OLF locations.
Following publication of the DEIS and the selection of Site C as
a preferred alternative, the Navy made three additional visits in the
winter of 2002-2003. The FEIS describes these three site visits in a
single paragraph, offering no details on the nature of the analysis con-
ducted beyond the fact that birds were observed loafing or foraging
in certain locations. See FEIS 12-139. The Navy attempts to draw on
other evidence in the record to showcase its site visits, but this too
provides only the briefest of summaries.
The first winter visit was made on December 2, 2002. The only
document the Navy cites in its brief recounting this trip indicates that
Navy representatives and Fish and Wildlife Services personnel were
led around the NWR by Joe Albea, a local expert and host of a North
Carolina wildlife television program, and others who were opposed to
a new OLF. Brief of Appellants at 28. The document provides no
details on bird concentrations beyond the report that the group
observed wildlife and discussed birds.
The Navy’s second winter visit was made on January 14-15, 2003.
According to the district court, this was the only site visit devoted to
studying the environmental impacts on waterfowl. Washington
County, 357 F. Supp. 2d at 868. The Navy spent the first evening in
a meeting with a group convened by Mr. Albea that included mem-
bers of various environmental groups and resource agencies critical
of the proposed OLF. The next morning, Mr. Albea led a tour of the
NWR and the Navy observed bird foraging. This tour lasted four to
five hours. At one point during the morning, the group saw a military
jet flying at low level over Pungo Lake and noticed that it did not
result in bird disturbance. Nonetheless, the group did no further study
into the frequency, altitude, or effects of jet flights during this site
visit. Following the tour of the NWR, Mr. Netti and other Navy repre-
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sentatives spent additional time driving around the site. This was Mr.
Netti’s last visit to Site C before the FEIS was published.
The third winter visit was made on February 12, 2003 and included
the Navy’s BASH Program Manager, Matt Klope. The Navy does not
describe this visit in its brief, nor does it point to any portions of the
record beyond an email indicating that this third visit occurred. Mr.
Klope’s visit did, however, result in a brief summary of bird-aircraft
strike issues that was used to complement Mr. Netti’s analysis.
In addition to these three winter site visits, the Navy also points to
a month-long radar study conducted in February-March 2003. See
FEIS 12-139 to 12-145. This study was designed in part to measure
bird movement patterns in the airspace that would be used by Super
Hornets training at the proposed OLF. While this study provided a
more continuous analysis of bird patterns than the hasty one-day site
visits, the Navy acknowledges that the radar study, by itself, does not
provide an adequate assessment of potential environmental harm.
First, by February and March, the migratory population had begun
to depart the Pocosin Lakes area, making the radar data less represen-
tative of the winter migratory season. This fact was noted in the FEIS.
It stated that movement patterns identified by the radar study "may
not reflect the overall foraging strategy of the birds throughout the
wintering period but rather their preference during the latter months
given the weather and distribution of crops during this particular sea-
son." FEIS 12-140 to 12-145. Even at this time, the radar study still
detected 452,210 birds of which 70,241 were "large bird targets."
FEIS 12-139.
Second, the district court found that the Navy knew a month-long
study was insufficient in duration. Washington County, 357 F. Supp.
2d at 869. Dan Cecchini, the EIS Project Manager, testified that "the
four-week time frame was too short for a meaningful study" and that
the Navy "never believed that a one-month radar study . . . was
enough to assess impacts." JA 2647b. The Fish and Wildlife Service
also advised that one month did not allow for the accumulation of
long-term data. JA 292.
Our "searching and careful inquiry," Hodges, 300 F.3d at 445 (quo-
tation marks omitted), compels the conclusion that the site visits and
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radar study do not pass muster under a "hard look" standard. As
described above, the initial summer visit afforded no occasion to
observe the waterfowl, and the subsequent three winter visits offered,
at best, abbreviated tours of the NWR. These one-day visits did not
provide a meaningful opportunity to conduct systematic observations
or perform species-specific studies. Compare Hughes River II, 165
F.3d at 288 ("hard look" satisfied where, among other things, agencies
sponsored two species-specific studies on zebra mussels). Nor could
long-term data be collected. In short, the site visits never developed
into the careful investigation that a "hard look" contemplates. See id.
(agency must "sufficiently identif[y]" environmental impacts). The
subsequent month-long radar study represents a beginning in this
regard, but its limitations have been conceded.
2.
We turn next to the Navy’s evaluation of a specific yet important
environmental impact, Bird Aircraft Strike Hazard (BASH). BASH
poses a formidable concern for flight operations. As the FEIS
recounts, thousands of bird-aircraft encounters are reported in the
United States every year. FEIS 12-128. The record contains evidence
that bird strikes have been responsible for aircraft damage and occa-
sionally pilot death and serious injury.
In addition to posing obvious risks to the safety of military avia-
tors, the parties do not dispute that BASH is an environmental issue.
BASH issues were, for example, raised by the Fish and Wildlife Ser-
vice in meetings with Navy representatives. BASH was also
addressed in comments on the DEIS and FEIS by the North Carolina
Wildlife Resources Commission and the Department of the Interior.
The Navy initially considered BASH as part of its OLF Siting
Study, which reviewed six potential sites for the proposed OLF. To
measure BASH, the Navy utilized Bird Avoidance Modeling (BAM),
a historical model of bird movement patterns that predicts relative
bird-aircraft strike potential for low-level aircraft flights. See FEIS
12-128 to 12-132. The model is based on combined historical data
from sixty species of birds that have been known to cause bird strikes
or are likely to pose BASH concerns due to flocking tendency, mass,
migration, and behavior. BAM sets risk levels (Low, Moderate, and
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Severe, with internal sub-levels in ascending risk 1-3; e.g., "Moderate
1") based on bird mass per square kilometer. Thus, while tundra
swans and snow geese are among the sixty species included in BAM,
BAM risk levels represent an aggregated biomass measurement utiliz-
ing historical data.
BAM was conducted on the six potential OLF sites as well as sev-
eral current military facilities, including NALF Fentress, NAS
Oceana, MCAS Cherry Point, and the Dare County Bombing Range.
This analysis classified Site C as a "Severe 1" average annual bird
strike risk and predicted a severe hazard advisory for approximately
50% of the year. By way of comparison, BAM indicated that NAS
Oceana, NALF Fentress, and the Dare County Range all have "Severe
1" average ratings, as did two other proposed OLF sites.
The Navy contends that an OLF at Site C would not pose an
unusual BASH risk because low-level flight training currently takes
place at Oceana, Fentress and the Dare County Range, which have
similar BAM ratings. But this comparative assessment provided only
a useful starting point for an analysis of waterfowl impact. BAM indi-
cated that Site C had among the highest BASH ratings of sites sur-
veyed. See FEIS 12-131. In order to reach the conclusion that impact
on waterfowl would be "minor," further BASH investigation was nec-
essary. BAM could not satisfy this obligation on its own.
The FEIS and ROD indicate that the Navy did not consider BAM
conclusive, for two primary reasons. First, the record indicates that
the Navy viewed BAM as a preliminary form of BASH analysis. The
ROD describes BAM as a screening mechanism for various proposed
sites, and BAM was conducted at an early stage in the OLF siting pro-
cess. 68 Fed. Reg. at 53,357. The FEIS similarly characterizes BAM
as "a first step in evaluating the relative BASH of the proposed OLF
sites," FEIS 12-128, and cautions that "BAM is just one tool used to
determine risk potential and does not necessarily reflect the Navy’s
overall assessment of risk at any particular site." FEIS 12-129. Mr.
Cecchini testified that "BAM is . . . an accepted first kind of main step
that you would do if you were looking at BASH." JA 2463a.
Second, the Navy acknowledged that BAM had key limitations.
The FEIS specifically references BAM’s "inability to adjust for real-
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time bird movements or population fluctuations because it is derived
from fixed, historical data." FEIS 12-129. Comparing BAM ratings
from other facilities therefore does not offer a complete assessment
of BASH risk, because flocking patterns and bird concentrations will
vary across sites. This qualification has additional significance in this
case due to the close proximity of the proposed OLF to a wildlife ref-
uge that is the winter home to tens of thousands of migratory water-
fowl. The district court found, and the Navy does not dispute, that
"nowhere else on the eastern seaboard is there a higher concentration"
of tundra swans and snow geese. Washington County, 357 F. Supp.
2d at 869.
Additional evidence in the record, including a 1999 article relied
upon by the Navy in the FEIS, FEIS 12-128 to 12-129, suggests fur-
ther limitations inherent in BAM. BAM is not species-specific, and
instead relies on a composite of sixty different birds of varying size
and weight. While BAM does utilize historical data from tundra
swans and snow geese, they are but two of the sixty species incorpo-
rated into the model. BAM does not, therefore, assess the BASH risks
posed by the specific species at the NWR. BAM also does not control
for variation in aircraft features, such as aircraft model, that have the
potential to increase or decrease BASH risk.
In addition to BAM’s acknowledged limitations and preliminary
nature, state and federal environmental agencies raised concerns
about bird strike hazards at Site C. In its critique of the FEIS, for
example, the Fish and Wildlife Service advised that the Navy’s con-
clusions drawn from BAM were "based on extremely limited data."
JA 292. Commenting on the DEIS, the North Carolina Wildlife
Resources Commission similarly emphasized the limited utility of
BAM and suggested that collisions with larger birds prevalent at Site
C, such as swans and geese, could have particularly catastrophic con-
sequences. JA 264.
In light of BAM’s acknowledged limitations, and with the under-
standing that Site C was a preferred site and presented a unique
BASH situation because of its proximity to the NWR, the Navy
endeavored to conduct what the FEIS describes as "[a] more in-depth
analysis" of BASH issues. FEIS 12-139. But the Navy claims this "in-
depth analysis" was satisfied by its winter 2002-2003 site visits and
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four-week radar study. As described above, these efforts fell short of
a thorough investigation. Nor was the Navy’s focus solely on BASH
during the site visits. Absent a more comprehensive investigation of
bird concentration and foraging patterns, the Navy could not make
supportable conclusions about bird-aircraft collisions.5
On the basis of BAM and the subsequent site visits and radar study,
the district court determined that the Navy’s BASH analysis "demon-
strate[d] patently flawed methodology." Washington County, 357 F.
Supp. 2d at 869. There is, however, no evidence to suggest that the
Navy failed to utilize standard tools in its BASH analysis. Hughes
River II, 165 F.3d at 289 ("Agencies are entitled to select their own
methodology as long as that methodology is reasonable."). The Navy
should also not be faulted for updating its BASH assessment during
the course of the EIS process.6
The Navy did falter, however, by not doing enough. BAM indi-
cated a severe hazard advisory at Site C for 50% of the year, and vari-
ous natural resource agencies had expressed concern about BASH
risks in the vicinity of the NWR. The Navy also acknowledged that
BAM was merely "a first step" in a BASH analysis and that BAM
provided limited predictability for actual bird patterns because it is
derived from fixed historical data. All of these facts warranted a more
searching investigation into BASH risk. This the Navy did not do.
Instead, it supplemented BAM with site visits and a radar study that
were themselves merely preliminary. In light of the serious environ-
5Nor are we persuaded by the Navy’s claim that its BASH Program
Manager determined that a BASH prevention program could be imple-
mented at Site C. Agencies are certainly entitled to rely on the opinions
of their own experts, but "[h]ere, however, the record provides no basis
for determining whether the opinions of the [BASH Program Manager]
were reasonable." Hughes River I, 81 F.3d at 445. While a BASH pre-
vention program may successfully reduce the threat of bird strikes, it is
dependent upon a conscientious assessment of BASH risk.
6Indeed, the district court found that the Navy’s post-FEIS decision to
adjust certain holding patterns to mitigate waterfowl impact "under-
mine[d] the sufficiency of the FEIS." Washington County, 357 F. Supp.
2d at 870. However, the Navy should not be discouraged from making
minor changes designed to reduce environmental impact.
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mental consequences of BASH and the proximity of the proposed
OLF to a bird sanctuary, a more extensive investigation into BASH
issues was required.
3.
We now turn to the Navy’s review of the scientific literature on the
effects of aircraft activity on waterfowl. As described above, the
Navy’s site investigation did not comprehensively consider the
impacts of aircraft activity on the tundra swans and snow geese in the
NWR. But the Navy suggests that preexisting scientific studies sup-
port its conclusion that aircraft activity will not significantly flush the
waterfowl around Site C. Scientific literature can be useful to an
agency in determining environmental impacts. See, e.g., Lee v. U.S.
Air Force, 354 F.3d 1229, 1244 (10th Cir. 2004) (relying, in part, on
the agency’s use of existing scientific studies to conclude that the
agency took a hard look); Hughes River II, 165 F.3d at 288 (relying,
in part, on the agency’s own scientific studies to determine that the
agency took a hard look).
The Navy’s cursory review of relevant scientific studies, however,
further illustrates its failure to take a hard look at the environmental
impacts of an OLF at Site C. Most of these studies do not support the
Navy’s conclusions that waterfowl "would not be affected" by the
OLF, FEIS 2-105, or that its impacts on waterfowl in the area would
be "minor," 68 Fed. Reg. at 53,354. Rather, the relevant studies sug-
gest, at the least, that Super Hornet activities in the area around Site
C might lead to substantial disturbance of snow geese. The Navy nei-
ther distinguishes this evidence adequately nor provides sufficient
counter-evidence.
As a preliminary matter, the Navy has consistently maintained that
wildlife reaction to aircraft noise is species-specific. See FEIS 12-116,
B-42. For example, it noted in the FEIS that "[a] common finding is
that behavioral responses to aircraft noise appear to be species-
specific. It is therefore difficult to draw conclusions from the effects
or responses of aircraft noise on one species and predict those
responses for other species." FEIS 6-91; see also FEIS 4-103 (same);
FEIS 8-64 (same); FEIS 10-28 (same). The Navy relied on several
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studies, such as the Edwards study and the Conomy study, to support
this conclusion. See FEIS B-42 to B-43.
The only species-specific studies that are available illustrate that
snow geese may be especially sensitive to aircraft activity.7 For exam-
ple, the Navy cited to a Davis and Salter study finding that aircraft
tended to flush snow geese. FEIS 12-120 to 12-121. The authors
determined that an airplane on the North Slope of Alaska disturbed
all visible snow geese when it was at 10,000 feet and below. At an
altitude of 5,000 feet, all snow geese within five miles were flushed.
The authors concluded that, while more studies were needed, recur-
ring flushing of snow geese might affect the birds’ ability to store
energy, which could impact their migratory success and ultimately
have long-term effects on future populations.
Other studies that the Navy cited confirm the conclusion that air-
craft disturb snow geese. See FEIS 12-121 (citing to studies by
Belanger and Bedard (1989) and Davis and Wiseley (1974) finding
that aircraft bothered snow geese); see also FEIS B-43 (citing to study
by Edwards (1979) noting the same). The North Carolina Wildlife
Resources Commission and the Fish and Wildlife Service have also
told the Navy that, based on scientific studies, snow geese are suscep-
tible to aircraft disturbance. JA 94, 261-262, 271. Thus, species-
specific information suggests that since the Super Hornets will land
on the OLF and fly as low as 3000 feet above the NWR, FEIS 12-121,
the aircraft may have the potential to flush snow geese up to five
miles away.
The Navy makes only a limited attempt in the FEIS to distinguish
these snow geese studies, which constitute some of the most striking
evidence against its "minor" impact conclusion.8 The Navy has con-
7The Navy provided no scientific studies regarding the reaction of tun-
dra swans to aircraft activity, noting that only a limited amount of infor-
mation exists. FEIS 12-121.
8The Navy does try to distinguish the Davis and Salter study in its
brief. Reply Brief of Appellants at 15-16. It claims that the snow geese
in Alaska would be more sensitive to aircraft than the snow geese in
North Carolina because Alaska is more isolated. This argument, how-
ever, is not in the FEIS and is supported by little more than speculation.
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sistently maintained that effects from aircraft activity are species-
specific, but seemingly places little weight on the snow geese studies
before it. Nor did the site investigation or comparative analysis pro-
vide sufficient species-specific data to counter these most relevant
studies.
The Navy contends, however, that it engaged in a hard look
because its overall analysis still supports its conclusion. It makes two
arguments. First, the Navy maintains that it was sufficient to simply
describe all the snow geese studies in the FEIS and acknowledge their
conclusions. This initial survey was a good start. A hard look in this
context, however, entails more than citing the articles or abstracts that
contradict the conclusions reached. See 40 C.F.R. § 1502.1 (EIS
"shall provide full and fair discussion of significant environmental
impacts"). If anything, the obligation to carefully parse contrary find-
ings is magnified when a congressionally protected National Wildlife
Refuge is only miles away.
Second, the Navy contends that it was sufficient for the FEIS to
rely on other studies illustrating that other species did not have a sig-
nificant response to aircraft noise. The FEIS cited to a volume of
studies by Fleming that suggested the black duck habituated relatively
quickly to aircraft noise. FEIS B-41. As the district court noted, how-
ever, these studies would appear to be of limited value since none of
them illustrated whether aircraft noise would disturb tundra swans or
snow geese, Washington County, 357 F. Supp. 2d at 871, and the
Navy made its position quite clear that the effects of aircraft activity
are species-specific, see, e.g., FEIS 6-91, 12-116, B-42. Further, the
studies also indicated that even within the duck family, some ducks
were able to habituate to aircraft noise while others were not. One of
the studies in the volume concluded "that the dissimilar responses
between black ducks and wood ducks suggest that the capability to
habituate to disturbance varies by species, a possibility also reported
by [other studies]." JA 1614; see also JA 1497 (same); JA 1756
(same). Moreover, the North Carolina Wildlife Resources Commis-
sion repeatedly called into question the Navy’s reliance on the Flem-
ing volume because the birds discussed in those studies were of a
different species. See JA 261-262, 271.
An agency’s hard look should include neither researching in a cur-
sory manner nor sweeping negative evidence under the rug. As we
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have noted, NEPA requires that the agency both investigate and
acknowledge the impacts on waterfowl around Site C. See Robertson,
490 U.S. at 350. The Navy fails on both fronts.
On the one hand, to the extent the Navy wishes to adhere to its con-
clusion that impacts on waterfowl would be "minor," its investigation
falls short of providing adequate support. The Navy did not distin-
guish in the FEIS the species-specific studies as to snow geese that
tend to directly contradict its conclusions. Nor did it explain its reli-
ance on black duck studies in light of its general position that effects
of aircraft noise are species-specific. On the other hand, to the extent
the Navy maintains its investigation was thorough, it has failed to
make a forthright acknowledgment of the likely environmental harm.
The most relevant literature indicates that the impacts may be much
greater.9
4.
We next address the Navy’s comparative analysis. The Navy relied
on the environmental effects of aircraft overflights at several existing
military facilities to reach its conclusion that an OLF at Site C would
have minimal impact on tundra swans and snow geese. The Navy
focused on three sites — the Dare County Bombing Range, the Piney
Island Bombing Range, and R-5314, which is restricted airspace
above the Pocosin NWR that is already used for high-speed, low-level
military jet flights. According to the Navy, its experience with these
three facilities lends support to the view that waterfowl will habituate
to any noise disturbance caused by FCLP at the proposed OLF.
9The Navy states that the impacts will be minor, notwithstanding the
studies illustrating the opposite, because it has "anecdotal evidence" that
disturbances will not occur. FEIS 12-121; Brief of Appellants at 37.
However, the Navy provides little indication of what this evidence is.
NEPA demands more than "anecdotal evidence." See 40 C.F.R.
§ 1502.24 (noting that agencies should "make explicit reference . . . to
the scientific and other sources relied upon for conclusions in the state-
ment"). To the extent that the anecdotal evidence was based on military
training exercises in restricted airspace above the NWR, referred to as
"R-5314," FEIS 12-121, that evidence lacks a sufficient factual founda-
tion at this point to support the Navy’s conclusion, as will be discussed
in the next subsection.
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The Navy does not dispute that implicit in its duty to "adequately
identif[y] and evaluate[ ]" negative environmental effects, Robertson,
490 U.S. at 350, is the unremarkable requirement that a comparative
analysis be founded upon a proper factual basis for the comparison.
As the Navy correctly argues, this does not require the existing facili-
ties to be "identical" to the proposed OLF. It does, however, require
the Navy to verify that there is a "rational basis" for any comparison.
Hodges, 300 F.3d at 445. This may include, for example, parallels in
species and habitat, or a showing that operations at the various facili-
ties are similar in nature or scope. See, e.g., Hughes River II, 165 F.3d
at 288 (hard look satisfied where, among other things, agency "com-
piled a report regarding the impact of zebra mussel infestation at
another lake with similar conditions to those anticipated at the Proj-
ect"). Here, we are unable to conclude that the Navy has established
this necessary factual predicate.
The Navy first claims that a Site C OLF will have minimal impact
on waterfowl at the Pungo Unit because aircraft training activities at
the Dare County Range have resulted in negligible waterfowl flushing
at the nearby Lake Mattamuskeet. The district court found that this
conclusion was made without any investigation into noise levels at
Lake Mattamuskeet or flight altitudes at the Dare County Range.
Washington County, 357 F. Supp. 2d at 872. The only ground of com-
parison proffered by the Navy is the allegedly commensurate distance
between the proposed Site C OLF and the NWR, and the Dare County
Range and Lake Mattamuskeet. But even this factual basis is lacking:
Site C is approximately five miles from the NWR, whereas the district
court found that Lake Mattamuskeet is fifteen miles from the Dare
County Range. Id. And scientific literature that the Navy cited indi-
cates that aircraft may flush snow geese up to five miles away. The
Navy provides no response for why the comparison to the Dare
County Range remains sound.
The Navy next points to the Piney Island Bombing Range and the
Fleming study suggesting that black ducks acclimated quickly to air-
craft noise and experienced no significant behavioral effects. On this
basis, the Navy contends that waterfowl at Site C are likely to habitu-
ate as well. The comparison lacks an adequate foundation. As dis-
cussed above in the context of the Navy’s review of scientific
literature, the Navy has consistently maintained that the impact of air-
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craft activity is species-specific. The Navy offers no explanation for
why Piney Island remains an appropriate comparison when it is
largely inhabited by ducks and not tundra swans and snow geese.
The Navy lastly offers a comparison to R-5314, restricted airspace
above the NWR. According to the Navy, R-5314 is currently used for
high-speed military flights as low as 1000 feet above ground level,
and snow geese still continue to populate the NWR during the migra-
tory season. The FEIS notes that "high concentrations of snow geese
and other migratory waterfowl at [the] NWR suggest that some habit-
uation may occur." FEIS 12-121. The comparison once again lacks
the requisite factual basis. The district court found that the Navy
never undertook any systematic investigation into operations at R-
5314, such as the number, frequency, altitude, or speed of flights.
Washington County, 357 F. Supp. 2d at 872. Nor did the Navy’s
determination that snow geese and other waterfowl continue to return
to the NWR establish that the bird population was not still decreasing
or experiencing adverse behavioral effects.
The Navy protests that finding its comparisons insufficient requires
it to produce too much detailed information before employing com-
parative analysis. To the contrary, the Navy must only supply enough
background information to establish a rational basis for its conclu-
sions. Hodges, 300 F.3d at 445. In this case, the Navy has provided
only the most cursory factual basis for its comparisons, to the extent
it has offered any at all. The Dare County and Piney Island Ranges
and R-5314 may well exhibit environmental effects analogous to
those at Site C, but this comparison is not self-evident. Demonstration
of sufficient similarity to make the comparison relevant requires addi-
tional investigation by the Navy.
5.
We finally consider the Navy’s analysis of the cumulative environ-
mental impacts of an OLF at Site C in conjunction with existing and
proposed military airspace over North Carolina. NEPA requires an
agency to consider not only the direct effects of an action, but also
the "incremental impact of the action when added to other past, pres-
ent, and reasonably foreseeable future actions regardless of what
agency (Federal or non-Federal) or person undertakes such other
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actions." 40 C.F.R. § 1508.7; see also id. § 1508.27(b)(7) (requiring
an agency to consider "[w]hether the action is related to other actions
with individually insignificant but cumulatively significant impacts").
At issue here are one set of "present" actions and one "reasonably
foreseeable future" action. 40 C.F.R. § 1508.7. First, the present
actions concern Federal Aviation Administration (FAA) designation
of substantial airspace in eastern North Carolina for military use. As
the FEIS details, North Carolina is home to a number of special use
areas for military training and operations, FEIS 9-2, training routes
for low-altitude flight practice, FEIS 9-10, and target ranges for weap-
onry training, FEIS 9-14.
The Navy contends that "FEIS Chapters 9 and 10 address airspace
usage, describing the existing environment and the effects to that
environment." Brief of Appellants at 43. However, neither chapter
addresses the possible incremental impacts of the proposed OLF.
Chapter 9 simply "provides a description of" the existing military air-
space, without offering any analysis of the possible cumulative effects
of the proposed action. FEIS 9-1. Chapter 10 does discuss environ-
mental impacts, but only those associated with different homebasing
alternatives, not those associated with different OLF siting alterna-
tives. FEIS 10-1.
This omission is crucial. By the Navy’s own calculations, there will
be 31,650 annual FCLP operations at the OLF. The Navy must con-
sider whether these operations, and the flights necessary for the Super
Hornets to travel between the OLF and their homebases, will add any
significant noise-related or other environmental impacts to those that
the existing military airspace currently imposes. For example, as the
Navy itself has noted, the NWR is already affected by low-level high-
speed flights in R-5314.
Second, the reasonably foreseeable action at issue involves the
Navy’s recent proposal that the FAA designate two additional Mili-
tary Operating Areas (MOAs) over North Carolina.10 One of these,
10As we noted above, the environmental plaintiffs have challenged the
sufficiency of the Navy’s compliance with NEPA in its requested desig-
nation of the two MOAs. See supra note 2. Our consideration of the
issues before us here does not prejudge the merits of a potential appeal
in that case.
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the "Mattamuskeet MOA," would be an area of twenty-five by thirty-
five nautical miles, part of which would lie over sections of Washing-
ton and Beaufort Counties and the Pocosin Lakes NWR. The Navy
plans to use the Mattamuskeet MOA for "aerial training operations,"
some involving the Super Hornets, that include "dog fighting, forma-
tion flying, acrobatic flying and evasive flying." Washington County,
357 F. Supp. 2d at 874.
The FEIS does contain a brief (approximately one-page) discussion
of the cumulative impact of OLF siting and the proposed Mattamus-
keet MOA. FEIS 13-14 to 13-15. This discussion, however, considers
only the cumulative impact of an OLF at Site D, because it asserts
that only that site, which is "immediately adjacent to [the MOA’s]
eastern boundary," would be "in proximity" to the MOA. FEIS 13-14
to 13-15. The FEIS claims that since the MOA and an OLF at Site
D would be "functionally independent," cumulative impacts on east-
ern North Carolina would be "minimal." FEIS 13-15. The only two
impacts that the FEIS specifically considers are interference with non-
military aircraft traffic and additional noise. The FEIS states that non-
military aircraft traffic would be minimally impacted by placing an
OLF right next to the MOA and that the potential impacts of addi-
tional noise would be mitigated by the Navy’s plan to relocate all resi-
dents in the affected area. FEIS 13-15.
The critical omission here is the failure to discuss the potential
cumulative impacts of building an OLF at Site C. The Navy asserts
that this omission is "reasonable," since "the potential cumulative
impacts at Site D were determined not to be significant, and [ ] the
location of Site C is further away from the Mattamuskeet MOA than
Site D." Brief of Appellants at 42-43.
We find this argument to be problematic. Site D may be closer to
the Mattamuskeet MOA than Site C, but this does not mean that con-
sideration of Site D’s cumulative impacts automatically substitutes for
consideration of Site C’s. Site C — which, we note, is only 4.5 miles
away from the MOA, see Washington County, 357 F. Supp. 2d at 874
— will interact with the MOA in at least one significant way that the
FEIS neglected to consider. The district court found, and the Navy
has not disputed, that "the holding patterns and arrival and departure
flight paths for the Mattamuskeet MOA and [an] OLF [at Site C]
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overlap at the edge of the Pungo Unit," id., the precise part of the
NWR that serves as the winter home to nearly 100,000 waterfowl, id.
at 864-65. Thus, there is a potential overlap of 31,650 annual FCLP
operations at Site C with an estimated 2400 flights per year through
the MOA. Needless to say, the FEIS’s analysis of Site D did not
address the issue of thousands of co-located flights near Site C, the
OLF location that the Navy actually chose.
NEPA’s hard look requires analysis of the combined impact that
may result from tens of thousands of flights potentially passing over
or near the same geographic area. See 40 C.F.R. § 1508.7; see also
Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976) (considering a situa-
tion where an agency simultaneously considered "several proposals
for . . . actions that will have cumulative or synergistic environmental
impact upon a region" and concluding that "their environmental con-
sequences must be considered together"). That the region in question
is part of a National Wildlife Refuge heightens the Navy’s statutory
duty. The Fish and Wildlife Service has expressed concern about
harm that the proposed MOA by itself would cause to resident water-
fowl, JA 105-06, creating cause for concern regarding what would
happen when the effects of the MOA and OLF are combined. "Only
through comprehensive consideration of pending proposals can the
agency evaluate different courses of action." Kleppe, 427 U.S. at 410.
The Navy’s consideration here of cumulative impacts both with
existing military airspace and with the proposed Mattamuskeet MOA
was insufficiently comprehensive.11 A holistic view of the FEIS
11The district court also appears to have decided, without meaningful
discussion, that the Navy failed to adequately consider cumulative
impacts of the OLF in combination with the second proposed MOA, the
"Core MOA." See Washington County, 357 F. Supp. 2d at 873. The Core
MOA is a narrow flight path intended "for high speed travel between the
Atlantic Ocean and existing military space over the Pamlico Sound." Id.
The FEIS concluded that there would be no cumulative impacts because
the Core MOA is more than thirty nautical miles south of the nearest
OLF siting alternative (Site D). FEIS 13-14. As neither the district court
nor plaintiffs have pointed us to any evidence suggesting that this con-
clusion was erroneous, we do not believe that any further analysis of
cumulative impacts with the Core MOA is required.
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makes this particularly apparent. The problems we have identified
with the Navy’s site investigation, BASH analysis, scientific literature
review, and comparative analysis bleed into the arena of cumulative
impacts as well. These shortcomings cast doubt upon whether the
Navy has fully comprehended the impacts of its actions in isolation,
let alone in combination with others. Only when the Navy fully inves-
tigates and acknowledges both will it satisfy NEPA. See Robertson,
490 U.S. at 350.
D.
Although we agree with the district court’s conclusion that the
Navy failed to undertake a hard environmental look, two words of
caution are in order. First, the district court exceeded the proper scope
of its inquiry when it placed probative weight upon evidence of the
Navy’s subjective intent. Washington County, 357 F. Supp. 2d at 874-
75. Plaintiffs have relied heavily on several internal Navy emails and
documents to advance the theory that the Navy had irreversibly
decided to locate an OLF at Site C before it began its environmental
impact analysis. Plaintiffs attempted to prove that twists and turns in
the agency’s official mind indicated that a hard look was not taken.
The district court inappropriately indulged this theory.
A court should generally restrict its inquiry to the objective ade-
quacy of the EIS, namely, thorough investigation of environmental
effects and candid acknowledgment of potential environmental harms,
Hughes River II, 165 F.3d at 288. Courts should not conduct far-flung
investigations into the subjective intent of an agency. For example, in
Fayetteville Area Chamber of Commerce v. Volpe, 515 F.2d 1021,
1026 (4th Cir. 1975), plaintiffs challenged an EIS on the ground that
a state official assisting in its preparation had made a prior adminis-
trative decision on the location of the same project. We declined to
probe into the subjective predispositions of agency decisionmakers
and held that the test for NEPA compliance "is one of good faith
objectivity rather than subjective impartiality." Id. (quotation marks
omitted). Since the EIS was "prepared in accordance with the applica-
ble statutes and regulations, there ha[d] been no violation of
[NEPA]." Id.; see also Coal. for Canyon Preservation v. Bowers, 632
F.2d 774, 782 (9th Cir. 1980) ("[S]ubjective good faith is not the test
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for determining the adequacy of an EIS. The test is an objective
one.").
This rule is supported by common sense. Inquiries into subjective
intent in the NEPA context open a Pandora’s box that courts should
in most cases attempt to avoid. Psychoanalyzing an agency’s intent
could restrict the open exchange of information within an agency,
inhibit frank deliberations, and reduce the incentive to memorialize
ideas in written form. It could also frustrate an agency’s ability to
change its mind or refocus its actions, the very effect that NEPA was
designed to encourage. See 40 C.F.R. § 1502.1 ("primary purpose" of
an EIS "is to serve as an action-forcing device to insure that the poli-
cies and goals defined in [NEPA] are infused into the ongoing pro-
grams and actions of the Federal Government"). Finally, most federal
agencies consist of numerous actors with varying levels of responsi-
bility and different objectives; discerning one subjective intent is a
speculative exercise at best.
NEPA of course prohibits agencies from preparing an EIS simply
to "justify[ ] decisions already made." 40 C.F.R. § 1502.2(g). But the
evidence we look to in determining whether this has taken place con-
sists of the environmental analysis itself. It does not include, as plain-
tiffs suggest, the alleged subjective intent of agency personnel divined
through selective quotations from email trails. Fayetteville, 515 F.2d
at 1026 (in assessing agency’s good faith, courts may not delve into
whether agency decisionmaking process lacked "subjective impartial-
ity"). Where an agency has merely engaged in post hoc rationaliza-
tion, there will be evidence of this in its failure to comprehensively
investigate the environmental impact of its actions and acknowledge
their consequences. See Robertson, 490 U.S. at 350. This objective
analysis is the full extent of our inquiry, and we therefore express no
opinion as to the Navy’s motivations here.
Our second word of caution is that to the extent the district court’s
judgment on the adequacy of the EIS was influenced by its opinion
on the necessity or wisdom of the proposed action, this influence was
inappropriate. The parties in this case vigorously debate whether a
new OLF is in fact needed. This discussion should remain within the
Navy. We reemphasize that "NEPA merely prohibits uninformed —
rather than unwise — agency action." Robertson, 490 U.S. at 351.
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Whether the Navy needs a new OLF is irrelevant to NEPA compli-
ance because NEPA does not demand particular results. Id. at 350.
Courts should not second-guess agency decisions, so long as the
agency has given a hard look at the environmental impacts of its pro-
posed action. "[T]he only role for a court is to ensure that the agency
has considered the environmental consequences; it cannot ‘interject
itself within the area of discretion of the executive as to the choice of
the action to be taken.’" Strycker’s Bay, 444 U.S. at 227-28 (quoting
Kleppe, 427 U.S. at 410 n.21). This is especially the case where the
government’s decision concerns military preparedness.
E.
It is important to place the foregoing analysis in some perspective.
The final decision on where to construct an OLF is committed by law
to the sound discretion of the Navy, once it has complied with the
requirements of NEPA. Strycker’s Bay, 444 U.S. at 227-28. Our
intention is in no way to wrest control of this ultimate decision from
the Navy’s hands, or to make NEPA an insurmountable bar to agency
action. However, the requirements that Congress has set forth in
NEPA are not ones that we are free to disregard, especially when the
proposed action would place extensive flight operations in close prox-
imity to a National Wildlife Refuge. The fact of this proximity does
not operate to defeat the Navy’s intentions, but it of necessity lends
importance to NEPA’s requirements that environmental impacts be
thoroughly investigated and forthrightly acknowledged. We reempha-
size that potential negative environmental impacts do not work to pro-
hibit the selection of Site C for an OLF, but those impacts simply
must be carefully analyzed and fairly evaluated. Robertson, 490 U.S.
at 350.
We caution district courts that they are not to flyspeck each and
every detail of an EIS, but to view it in its entirety, as we have
attempted to do. In this case, a shortcoming in a particular area of
analysis may not have been fatal to the legal sufficiency of the FEIS.
But taken in combination, the inadequacies of the Navy’s investiga-
tion are too serious to ignore. Considered together, the site investiga-
tion, BASH analysis, review of scientific literature, comparative
analysis, and cumulative impact analysis reveal neither a complete
investigation into environmental impacts nor a frank admission of
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environmental harms. The end result of this study was the far from
self-evident conclusion that repetitive take-offs and landings of
advanced fighter aircraft near mass gatherings of waterfowl will have
only the most minor of impacts upon them. Maybe so, but this needs
to be explained.
The sufficiency of the mitigation measures proffered in the FEIS
are necessarily dependent on an adequate assessment of environmen-
tal impact. For this reason, the FEIS also fails to sufficiently address
mitigation.
We would be remiss in our own obligations under NEPA if we
were to countenance an environmental review that was in its various
aspects lacking in the hard look that NEPA mandates and requires.
The Navy is accordingly ordered to prepare a SEIS that respects the
congressional directive that agency decisionmaking weigh seriously
environmental harms.
IV.
We now turn to consider what further steps, if any, the Navy may
take toward placing an OLF at Site C prior to its completion of the
SEIS. The district court entered an injunction prohibiting any such
activity. The Navy argues that the injunction is overly broad and
requests that we narrow it.
We review the scope of an injunction for abuse of discretion. Va.
Soc’y for Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379,
392 (4th Cir. 2001). In doing so, we review the district court’s factual
findings for clear error and its legal conclusions de novo. Id.
A.
The Supreme Court has cautioned that "[t]he grant of jurisdiction
to ensure compliance with a statute hardly suggests an absolute duty
to do so under any and all circumstances, and a federal judge sitting
as chancellor is not mechanically obligated to grant an injunction for
every violation of law." Weinberger v. Romero-Barcelo, 456 U.S.
305, 313 (1982). Instead, courts must look to traditional principles of
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equity to determine what form of injunctive relief, if any, is appropri-
ate to remedy a statutory violation. See id. at 311-13. These equitable
principles have always required "irreparable injury and the inade-
quacy of legal remedies" before an injunction is warranted. Id. at 312.
Even where these conditions are met, however, the crafting of an
injunction is not a one-way street. Just as the plaintiff is harmed by
the legal violation that gave rise to its claim, so may the defendant be
harmed by the injunction itself. "[T]he traditional function of equity
has been to arrive at a ‘nice adjustment and reconciliation’ between
the competing claims." Id. (quoting Hecht Co. v. Bowles, 321 U.S.
321, 329 (1944)). In granting injunctive relief, a court must also "pay
particular regard for the public consequences of employing the
extraordinary remedy of injunction." Id. Where the harms of a partic-
ular injunctive remedy outweigh the benefits, a court may decline to
adopt it. Id. at 312-13.
NEPA creates no exception to the traditional principles that govern
injunctive remedies. The CEQ regulations require that "[u]ntil an
agency issues a record of decision . . . no action concerning the pro-
posal shall be taken which would: [1] [h]ave an adverse environmen-
tal impact; or [2] [l]imit the choice of reasonable alternatives." 40
C.F.R. § 1506.1(a); see also id. § 1502.2(f) ("Agencies shall not com-
mit resources prejudicing selection of alternatives before making a
final decision.").
In a given case, an injunction may be necessary to prevent actions
that would produce either or both of these results. We have recog-
nized that "‘[e]nvironmental injury, by its nature, can seldom be ade-
quately remedied by money damages and is often permanent or at
least of long duration, i.e., irreparable.’" S.C. Dep’t of Wildlife &
Marine Res. v. Marsh, 866 F.2d 97, 100 (4th Cir. 1989) (quoting
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987)). And
we have ordered an injunction against further pre-EIS work on a high-
way where we found that "[i]f investment in the proposed route were
to continue prior to and during the Secretary’s consideration of the
environmental report, the options open to the Secretary would dimin-
ish, and at some point his consideration would become a meaningless
formality." Arlington Coal. on Transp. v. Volpe, 458 F.2d 1323, 1333
(4th Cir. 1972); see also Md. Conservation Council, Inc. v. Gilchrist,
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808 F.2d 1039, 1042-43 (4th Cir. 1986) (permitting an injunction
under similar circumstances contingent on the district court finding,
inter alia, that the proposed highway construction program would
actually violate 40 C.F.R. § 1506(a)(2)).
We have cautioned, however, that a NEPA injunction "should be
tailored to restrain no more than what is reasonably required to
accomplish its ends." S.C. Dep’t of Wildlife, 866 F.2d at 100 (quota-
tion marks omitted). Violation of NEPA is not always cause to enjoin
all agency activity while the agency completes the required environ-
mental analysis. If this were the case, 40 C.F.R. § 1506.1(a) would be
rendered superfluous. The subsection’s specific prohibition only on
activities that cause environmental harm or "[l]imit the choice of rea-
sonable alternatives" compels the conclusion that activities exist
which do not have such effects and may proceed while an EIS is
pending. Indeed, a later subsection expressly lists one such activity,
stating that § 1506.1(a) "does not preclude development by applicants
of plans or designs or performance of other work necessary to support
an application for Federal, State or local permits or assistance" while
NEPA work is in progress. 40 C.F.R. § 1506.1(d).
It is therefore unsurprising that our caselaw has been careful to tai-
lor the scope of injunctive relief in NEPA cases. First, we have noted
that a NEPA injunction predicated on preventing environmental harm
can be overbroad if it restricts nonharmful actions — even ones that
are precursors to other actions that are potentially harmful. South Car-
olina Department of Wildlife concerned a proposed action by the
Army Corps of Engineers to install and operate pumped storage gen-
erators at a dam. 866 F.2d at 98. The district court found that the
agency’s EIS likely failed to sufficiently consider the environmental
impact of operating the generators, and it thus issued a preliminary
injunction preventing the Corps from installing or operating the gen-
erators until it produced a sufficient EIS. Id. at 100.
We held that this injunction went too far. Id. We reasoned that "in-
stallation alone," absent activation of the generators, would "cause no
environmental damage," and we consequently narrowed the injunc-
tion to allow installation simultaneous with the environmental study.
Id. While the results of the study had the potential to persuade the
agency not to run the generators, the decision as to whether it would
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thus be a waste of resources to proceed with installation was "one
Congress ha[d] charged the Corps with making." Id. at 101.
Second, we have indicated that allowing an agency to continue
work on a project while its environmental study is pending does not
necessarily create the type of option-limiting harm that NEPA seeks
to prevent. Like the inquiry into whether an agency has taken a "hard
look," the question of whether particular activities will in fact "[l]imit
the choice of reasonable alternatives," 40 C.F.R. § 1506.1(a)(2), is
context-specific. As noted above, in two cases involving highways,
we found that permitting construction to continue before the environ-
mental analysis was complete would virtually require the agency to
finish the project regardless of what that analysis revealed. See Gil-
christ, 808 F.2d at 1042-43; Arlington Coal., 458 F.2d at 1328, 1333-
34. But we have expressly declined to read these results too broadly:
If the rule were such that any construction that could, in
even the smallest degree, bring public and political pressure
on agencies is prohibited until final agency approval of all
aspects of the project, the prohibition would logically extend
to any de minimis construction. . . . [F]or example, it might
extend even to surveying and unrelated construction . . . .
That is not the intended reach of Gilchrist.
North Carolina v. City of Virginia Beach, 951 F.2d 596, 603 (4th Cir.
1991). Indeed, Gilchrist itself expressly held it to be a factual ques-
tion whether an activity "in fact violates NEPA and its regulations by
limiting ‘the choice of reasonable alternatives’ available to federal
decision-makers." 808 F.2d at 1043 (citing 40 C.F.R. § 1506.1(a)(2)).
In sum, a court should not automatically enjoin agency action
whenever it finds a NEPA violation. As in all injunction cases, a court
must balance the harms particular to each case in assessing whether
an injunction is justified and how far it should reach. And it should
take care not to craft a remedy that extends beyond what NEPA itself
and its implementing regulations require.
B.
The district court in this case issued a sweeping injunction, prohib-
iting the Navy "from taking any further activity associated with the
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planning, development, or construction of an OLF in Washington and
Beaufort Counties without first complying with its obligations under
NEPA." Washington County, 357 F. Supp. 2d at 878 (emphasis
added). We hold that it erred in doing so.
The district court treated the injunction as an all-or-nothing propo-
sition, reasoning that any further action by the Navy would violate
NEPA. See id. at 877-78. The district court noted that "during the
periods when an injunction has not been in place, the Navy has pro-
ceeded with the development of the OLF" and asserted that such
actions "have been taken within a context that does not conform to the
requirements of the law." Id. at 878.
As our above discussion demonstrates, such a broad-brush view of
NEPA is an error of law. The CEQ regulations and our own caselaw
make clear that agency action prior to completing a sufficient envi-
ronmental study violates NEPA only when it actually damages the
environment or "limit[s] the choice of reasonable alternatives." 40
C.F.R. § 1506.1(a). Rather than treat "development of the OLF" as a
single indivisible activity, the district court should have subdivided it
to determine which of its component steps (either in isolation or in
combination) would cause these harms and which would not. See S.C.
Dep’t of Wildlife, 866 F.2d at 100.
It was likewise error to discount the harm to the Navy that would
result from the injunctive remedy. See Washington County, 357 F.
Supp. 2d at 878 (concluding that the harm "will not be appreciable").
According to the district court, "[t]he record shows that while an OLF
may increase operational flexibility, current military facilities, includ-
ing NALF Fentress, are sufficient to accommodate training for the
Super Hornets until a NEPA analysis can be completed." Id. at 877.
To reach this conclusion, the district court relied upon selective evi-
dence from "the Navy’s working documents" to second-guess the
Navy’s need for an OLF and opined that naval decisionmakers had
"intentionally discredited" the use of NALF Fentress. Id. As we have
previously stated, inquiries into an agency’s subjective intent and the
necessity of its substantive decision exceed the permissible scope of
judicial review in a NEPA case.
The Navy asserts that "[e]very day that the Navy is prevented from
moving forward with an [OLF] in Washington County has an impact
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on Naval aviation readiness." JA 2014 (declaration of Admiral Wil-
liam J. Fallon). The readiness of carrier groups so essential to the pro-
tection of this nation’s vital interests and the safety of pilots who risk
their lives in the common defense are matters of the gravest import.
It is uncontested that training at a new OLF will be superior to train-
ing at the Navy’s current facilities — it is for precisely this reason
that the Navy has decided to build one. District courts should not sub-
stitute their own judgments for those of the Executive Branch in such
national security matters as pilot training, squadron readiness, and
safety. See U.S. Const. art. II, § 2, cl. 1.
Plaintiffs urge us to affirm the district court’s conclusion. They
argue that the Navy’s declaration on its website that "We have the
most ready force in our history!" undermines the rationale for build-
ing a new OLF. Brief of Appellees at 44. "These are not empty
words," plaintiffs claim, because "the Navy has within the past four
years successfully fought two wars" using the training facilities it now
seeks to replace. Id.
Even if we had the constitutional power to strip the Executive of
its decisionmaking authority in military matters, plaintiffs’ argument
would not induce us to exercise it. General statements from a public
website cannot substitute for the considered judgment of the Execu-
tive on the more technical and particularized matter of the need for
a new OLF. And it goes without saying that the Navy need not lose
an armed conflict before it may upgrade its training methods. Both
common sense and the Constitution require us to reject plaintiff’s sug-
gestion that we hold otherwise.
C.
For the foregoing reasons, we must reexamine the scope of the
injunction. Our inquiry focuses on specific types of activities that the
Navy has requested permission to pursue while it completes its SEIS.
As we find that these activities will neither harm the environment nor
limit the options available to the Navy — nor cause any other form
of irreparable harm — we conclude that the injunction must be nar-
rowed to permit them.
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1.
In its brief and in the declaration of Rear Admiral Richard E. Cel-
lon (Commander, Naval Facilities Engineering Command, Atlantic),
the Navy specifies five categories of activity that are prerequisites to
construction and will take a significant amount of time to complete.
The Navy contends that narrowing the injunction to permit these
activities to proceed in parallel with the SEIS will substantially reduce
the potential for the injunction to cause irreparable harm to naval pre-
paredness.
First, the Navy seeks to conduct a site-specific Wildlife Hazard
Assessment and a site-specific BASH Plan. While some of this work
would of course be required for the SEIS, the Navy asserts that it
wishes to go beyond the requirements of NEPA and pursue more
intensive studies at Site C in particular. These studies will take over
a year to complete.
Second, the Navy wishes to undertake activities preliminary to land
acquisition, including property surveys and appraisals, title searches,
relocation surveys, and hazardous material surveys. In total, these
efforts may take over a year to complete. Some of the surveying will
require the Navy to obtain temporary easements or rights of entry
onto land owned by private individuals.
Third, the Navy desires to purchase land from willing sellers. This
includes both completing existing purchase agreements that have been
held in abeyance by the district court’s order as well as reaching addi-
tional agreements with other landowners.
Fourth, the Navy seeks to proceed with architectural and engineer-
ing work necessary for the planning and design of an OLF at Site C.
These efforts will take over a year, and the inception of this work is
a prerequisite for the lengthy permit application process that must also
precede any actual construction.
Fifth, once the design is far enough along to make this possible, the
Navy requests permission to apply for the permits it will require
before breaking ground on the OLF. At the least, the Navy will
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require a permit under the Clean Water Act before it may proceed
with construction. See 33 U.S.C. §§ 1311(a), 1344(a) (2000). The pro-
cess of obtaining this and possibly other permits will take six to nine
months, and may begin only after three to six months of the design
work.
2.
Any environmental harm that the above activities might cause
would be negligible. With respect to land acquisition only, the district
court did suggest that "the fragile habitat around Site C will be dis-
rupted" if it were allowed to continue. Washington County, 357 F.
Supp. 2d at 877. But the record fails to support the idea that simple
title transfers will injure the environment. The Navy has publicly
stated its plan to out-lease the majority of the land it acquires for agri-
cultural activities, and it plans no restrictions on the types of crops
that can be grown there. 68 Fed. Reg. at 53,356.12 It is therefore
apparent that the environmental impact of the Navy’s undertaking
will arise from the construction and operation of the OLF, not from
the fact that the area’s farmers are lessees rather than holders in fee.
See, e.g., Ohio ex rel. Brown v. Callaway, 497 F.2d 1235, 1239-41
(6th Cir. 1974) (upholding, where EIS for agency project was inade-
quate, district court’s injunction prohibiting "activity which would
alter the natural environment of the project area" but permitting "con-
tinue[d] land acquisition") (quotation marks omitted).
The district court also reasoned that land transfers would harm the
county plaintiffs’ tax revenues. Washington County, 357 F. Supp. 2d
at 877. But a county does not suffer irreparable harm — or possess
a cognizable third-party interest — when a private landowner will-
ingly sells his property to a non-taxable entity such as the federal gov-
ernment. And it would be ironic if a local government’s constitutional
inability to tax the federal government were to bestow additional
12The Navy has suggested that crop restrictions might be a way to miti-
gate BASH issues, because growing a non-edible crop near the OLF
would discourage birds from venturing there. See FEIS 12-113, 12-147.
However, even if implemented, these restrictions would apply only to a
small percentage of the land, and, in any event, we are not aware of any
plans to implement them prior to the actual construction of the OLF.
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power to enjoin the federal government from acting, at least where the
federal action is motivated by national security concerns.
3.
Even if these steps by themselves will cause no environmental
harm, plaintiffs contend they will create irreparable harm in the form
of a "bureaucratic steamroller." According to plaintiffs, if the Navy
"continue[s] its commitment of public resources to a site chosen as a
result of a fundamentally flawed process . . . [t]his would only propel
the Navy even further towards biasing the decisionmaking process in
favor of Site C." Brief of Appellees at 45-46. In other words, plain-
tiffs argue that allowing these activities will function to "[l]imit the
choice of reasonable alternatives" available to the Navy, 40 C.F.R.
§ 1506.1(a)(2), by committing the Navy’s attention and resources to
Site C.
We have noted above our rejection of the claim that even the most
minor of steps toward a course of action that an agency initially pre-
fers must necessarily wait until completion of its NEPA analysis.
Supra at 35-36. Indeed, such a rule would be impractical with respect
to the sorts of preliminary activities that the Navy proposes here. One
cannot expect an agency in all cases to neatly proceed from environ-
mental analysis to planning. Each endeavor inevitably impacts the
other, and the CEQ regulations specifically anticipate that "[a]gencies
shall integrate the NEPA process with other planning." 40 C.F.R.
§ 1501.2 (emphasis added); see also id. § 1506.1(d) (permitting
design and other work for permit applications during the NEPA pro-
cess).
The facts of this case provide a good example of why this is so. It
goes without saying that additional site-specific wildlife studies and
BASH analysis will enhance the environmental consideration that
NEPA already requires. Beginning design and engineering work on
the OLF will allow the EIS to provide greater specificity on the
OLF’s environmental impacts and on how to mitigate them. Land sur-
veys and Clean Water Act permit applications also have the potential
to provide useful environmental information. And even if they did
not, it would not be economical to require that the Navy wait until
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after it completes a lengthy environmental analysis to find out that the
land is unsuitable or the permits unattainable.
To be sure, an agency’s planning may focus most intently on a lim-
ited subset of all the possible alternatives available to it. But to hold
such focus to be a per se violation of NEPA would severely under-
mine the statute’s efficacy. Mandating equally detailed planning for
all possible alternatives would force on the agency three unappealing
alternatives. First, it could limit its planning and thereby risk unwel-
come surprises at a later point — hardly a good way to effectuate
NEPA’s goal of promoting "better decisions," 40 C.F.R. § 1500.1(c).
Second, it could commit an extraordinary amount of resources to each
project, potentially including design, planning, and permit application
for alternatives it will ultimately eschew, see id. § 1506.1(d). Finally,
it could unduly narrow the range of possible alternatives in order to
make possible a complete investigation of each, meaning that the very
burdens of NEPA compliance would function to limit the range of
"reasonable alternatives" that the statute requires agencies to consider,
see id. § 1502.14. We decline to hold that NEPA hinders federal
agencies in such a fashion.
The proper inquiry in a NEPA case is therefore not whether an
agency has focused on its preferred alternative, but instead whether
it has gone too far in doing so, reaching the point where it actually
has "[l]imit[ed] the choice of reasonable alternatives." Id.
§ 1506.1(a)(2); see also Gilchrist, 808 F.2d at 1043. The list of activi-
ties the Navy seeks to perform here does not cross that line. Further
environmental studies and land surveys do not pre-commit the Navy
to building an OLF at Site C. The CEQ regulations expressly allow
design and other work necessary for permit applications. See 40
C.F.R. § 1506.1(d). And plaintiffs do not dispute the Navy’s assertion
that even design work going beyond what would be necessary for per-
mit applications will be roughly fifty-percent reusable should the
Navy ultimately select a different site.
Nor will the Navy’s purchase of land from willing sellers turn its
ultimate decision about where to place the OLF into a foregone con-
clusion. As a preliminary matter, it is questionable how much of Site
C the Navy will actually be able to acquire without exercising its emi-
nent domain powers. Plaintiffs suggest that most of the current land-
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owners are opposed to the Navy’s plan, and the record contains
declarations from landowners who wish to retain title to their prop-
erty. Furthermore, as we have noted, the Navy plans to lease most of
the land it acquires at Site C, and it can undertake this venture regard-
less of whether it eventually builds the OLF there. Finally, plaintiffs
suggest no reason why the Navy could not attempt to resell the land
if it decides to build an OLF elsewhere.
Two additional considerations bolster our conclusion that these five
activities will not unduly influence the Navy’s decisionmaking pro-
cess. First, we believe that the Navy will complete its supplemental
NEPA analysis — which it began prior even to our hearing argument
in this case — in good faith. Its current EIS, while deficient, is not
contemptuous of NEPA’s important mandate. Accordingly, we trust
that the SEIS will proceed with a hard look and honest assessment of
the environmental impacts and, more importantly, with an under-
standing that those impacts may bear on the actual decision and not
serve simply to ratify foregone conclusions. Second, these five steps
are far from the only ones that the Navy must complete before its
OLF becomes operational. Most significantly, it must still acquire the
remaining land by condemnation, and it must still construct the OLF
and supporting facilities. Indeed, the five activities we have consid-
ered do not include cutting even a single blade of grass in preparation
for construction.
D.
We therefore order that on remand, the district court should modify
the injunction to allow the Navy to pursue the following activities
while completing the SEIS:
(1) a site-specific Wildlife Hazard Assessment and BASH plan at
Site C;
(2) efforts preliminary to land acquisition at Site C — property sur-
veys and appraisals, title searches, relocation surveys, and hazardous
material surveys — and, where necessary as part of these efforts, the
obtaining of temporary easements and rights of entry onto land owned
by private individuals;
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(3) land purchases at Site C from willing sellers, with the power of
condemnation usable only with the seller’s consent where necessary
to clear title or fix a price;
(4) architectural and engineering work necessary for planning and
design of an OLF at Site C;
(5) application for permits necessary to construct and operate an
OLF at Site C.
V.
Our holding in this case rests upon two important separation of
powers principles. First, Executive decisionmaking must fully comply
with the environmental policy mandate that Congress has expressed
through NEPA, particularly where the Executive’s proposed action
may affect an area that Congress has specially protected as a National
Wildlife Refuge. Second, the judiciary must take care not to usurp
decisionmaking authority that properly belongs to the Executive or
unduly hamper the Executive’s ability to act within its constitution-
ally assigned sphere of control.
The Navy’s failure to take a hard look at the environmental effects
of its proposed OLF violated the first of these principles. The second-
guessing of the Navy in matters of military readiness and the overly
broad grant of injunctive relief violated the second. We thus agree
with the trial court that the Navy must undertake further environmen-
tal study, but we require that court on remand to narrow the injunction
to permit the five specific activities that we have detailed. The judg-
ment of the district court is therefore
AFFIRMED IN PART; VACATED AND
REMANDED WITH INSTRUCTIONS IN PART.
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